Ethically Speaking

• Jurisdiction: United States,Federal,Wyoming
• Citation: Vol. 33 No. 5 Pg. 34
• Pages: 34
• Publication year: 2010

Wyoming Bar Journal2010.

Vol. 33, No. 5, 34. Ethically Speaking

Wyoming Bar Journal
Issue: October, 2010

Ethically Speaking

by John M. Burman
I Carl M. Williams Professor of Law and Ethics
University of Wyoming College of Law

Lawyers' and Judges' Ethical Duty of Competence

Lawyers have both legal(fn1) and ethical(fn2)duties to represent clients competent-/ly. The legal duty, to act with "that degree of care, skill, diligence and knowledge commonly possessed . . . by a reasonable, careful and prudent lawyer . . . ."(fn3) is usually enforced through a malpractice action against the offending lawyer.(fn4) That duty has previously been the topic of an "Ethically Speaking" column.(fn5) The ethical duty is also to act reasonably, and it is surprisingly new. The rules of ethics "did not expressly require lawyer competence as an ethical matter until after 1970 . . . ."(fn6) Now the ethical duty is express. "A lawyer shall provide competent representation to a client."(fn7)

While a single failure to act competently may lead to a malpractice suit, a single lapse is unlikely to lead to the filing of a grievance and the imposition of a sanction unless the act or omission: (1) is part of a pattern of incompetence; (2) is coupled with a lack of diligence (a violation itself of Rule 1.3;(fn8)) or (3) a significant error (such as the missing of a statute of limitations).

Although the duty of competence is more often enforced through malpractice actions rather than through the grievance process, the ethical duty is not only similar, but also a violation may lead both to the filing of a grievance, and the fact of the ethical violation "may be evidence of the applicable standard of conduct"(fn9) in the malpractice suit. Further, all lawyers should want to fulfill what may be the most basic duty lawyers owe to their clients: the duty to be competent.

Before discussing the ethical duty of competence, it is worth noting that the duty applies both to judges(fn10) and to lawyers.(fn11 )Furthermore, judges have a duty to report certain behavior of other judges(fn12) and of lawyers,(fn13) and lawyers have a duty to report certain behavior of other lawyers(fn14) and of judges.(fn15) Both judges and lawyers, therefore, must know about the ethical standards that apply to the other group, and both judges and lawyers have an ethical duty to report at times.

Ethical Standards for Judges

Judges in Wyoming, other than federal ones,(fn16) are subject to the Wyoming Code of Judicial Conduct ("the Code").(fn17) The Code mandates that judges be competent.

Although the Code in effect in Wyoming is based on the 2007 edition of the American Bar Association's ("the ABA") Model Code of Judicial Conduct, it (the Code in Wyoming) has some important differences from the Model Code, especially relating to the selection and retention of judges.(fn18) While there are also differences in the codes of judicial conduct adopted by the federal courts and the Wyoming Code, the differences generally relate to the selection and retention of judges. The core principles, such as the duty of competence, are substantially similar. Because of that similarity, it is useful to discuss the provisions of the Wyoming Code of Judicial Conduct, as both federal and non-federal judges in Wyoming must meet the same standard of competence.

The Code consists of four canons which "state overarching principles."(fn19) Each canon is followed by a series of rules which are binding on judges,(fn20) and each rule is followed by one or more comments. The comments "provide guidance,"(fn21) and "identify aspirational goals for judges."(fn22) The issue of "competence" is addressed in a canon, a rule, and the commentary to that rule.

Canon 2 says: "A Judge Shall Perform the Duties of Judicial Office Impartially, Competently, and Diligently."(fn23) That admonition is also contained in the rules that follow the canon. "A judge shall perform judicial and administrative duties competently, diligently, and promptly."(fn24) Finally, the commentary elaborates on what competence means. "Competence in the performance of judicial duties requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary to perform a judge's responsibilities of judicial office."(fn25)As discussed below, those three concepts, "legal knowledge, skill, thoroughness and preparation," also apply to lawyers.

The first requirement, "legal knowledge," will, of course, vary with the type or types of cases the judge hears. A judge may be quite specialized, serving, for example, as a judge of a court of limited jurisdiction, such as a municipal court. Such a judge probably hears only cases involving violations of city ordinances. If that is the situation, the judge will quickly become conversant with the law that applies to the cases he or she generally hears. If the judge was not familiar with the applicable law when he or she began serving as a judge, the judge will quickly become so. On the other hand, a judge may sit in a court of general jurisdiction, as do district court judges in Wyoming, hearing a wide variety of cases. In such circumstances, the legal knowledge necessary to competently discharge his or her duties will be significantly broader. When a question arises about which the judge is uncertain, the ethical key will be for the judge to take the time to determine the correct answer before proceeding. It simply is not reasonable to expect a judge to be familiar with a wide range of legal areas, though it is reasonable to expect the judge to acquire the necessary legal...